Estate of James Nevers v. Rachel Nevers, 2022 NBKB 179

Citation: Estate of James Nevers v. Rachel Nevers , 2022 NBKB 179 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MC-420-202 0 ESTATE OF JAMES WIGGINS NEVERS BY ITS EXECUTRIX ARLENE NEVERS v. RACHEL NEVERS DECISION BEFORE: Justice Jean-Paul Ouellette AT: Moncton, New Brunswick DATE OF HEARING: April 21, 2022 DATE OF DECISION: September 22, 2022 APPEARANCES: Monica Barley , for the Plaintiff Bruce Phillips , for the Defendant

OUELLETTE, J. INTRODUCTION [ 1 ] The Estate of James Wiggins Nevers (the “Estate”), by its executrix Arlene Nevers, claims the amount of $47,122.87 from his granddaughter, Rachel Nevers (“Mrs. Nevers”), representing the original principal amount of $48,514.92 plus 3% interest less an amount already reimbursed of $2,947.50. [ 2 ] The Estate alleges that these monies were a loan while Mrs. Nevers suggests that it was a gift from her grandfather and that it was never intended to be reimbursed. The matter proceeded under Rule 79 of the Rules of Court and was first filed by the Litigation Guardian of Mr.

Nevers, Arlene Nevers, his daughter, and continued after his passing by the Estate. THE EVIDENCE [ 3 ] In early 2017, Mrs. Nevers, then living in Nova Scotia, wanted to move to New Brunswick. She called her grandfather, who had some rental property, to find out if he would have an apartment for her to rent. Not having anything available, he suggested that he would assist her with the purchase of a residence. [ 4 ] Mrs. Nevers found a property that she could purchase but had to get a loan from the bank.

In order to get a loan, she was required to pay some debts and have a down payment available for the purchase of the residence. [ 5 ] She went to Mr. Nevers who advanced her $15,663.99 to pay some debts and $26,850.93 for the down payment required at closing. [ 6 ] The bank requested, for its mortgage approval, a statement from Mr. Nevers that $48,000.00 had been gifted to Mrs. Nevers in order for them to process the loan. Mr. and Mrs. Nevers attended the bank prior to closing and confirmed in writing that a $48,000.00 payment had been made to assist in the purchase of a home for Mrs.

Nevers as a gift and would never have to be repaid. Mrs. Nevers testified that they had to return to the bank to initial a change to the document and acknowledge the gift as being $51,000.00 and not $48,000.00. In this regard, she had no explanation. [ 7 ] However, during her evidence Mrs. Nevers explained that Mr. Nevers had first handed her $1,000.00 as a down payment and another $6,000.00 in cash. That would explain the $49,514.92 as the bank drafts were for $26,850.93 and $15,663.99 respectively. Adding the three percent interest left a “Note” of $49,970.37. In her evidence, Mrs.

Nevers had, up to that time, always used the word “gift” as often as she could before slipping and using the word “Note” of $49,970.32. [ 8 ] On April 17, 2017, Mrs. Nevers testified that, returning to Mr. Nevers’ home from the bank, she drafted a note that read as follows: “Rachel Nevers will start repayment for the amount of $49,970.37. That is $48,514.92 + 3%. Payments will begin June 2, 2017, amounts of $200.00, bi-weekly. With plans of reassessment acceptable in the future”. This note, in evidence, was signed by both Mrs. Nevers and Mr. Nevers and witnessed by Janet Black, Mr.

Nevers’ girlfriend. [ 9 ] From June 2, 2017, to July 3, 2017, $600.00 was paid directly into Mr. Nevers’ personal bank account after Mrs. Nevers had been provided with Mr. Nevers’ bank account information so she could make direct bi-weekly payments. [ 10 ] On January 29, 2018, Mrs. Nevers prepared a document stating the following: “January 29, 2018 This is a new agreement between Rachel Nevers and James Nevers and will void the previous agreement dated April 17, 2017. As of Today the balance is $49,370.37.

Moving forward the payment agreement will be decided based on a verbal conversation between Rachel Nevers and James Nevers . This is a mutual family decision that has been agreed upon between Rachel Nevers and James Nevers James is of sound mind to make his own decision.” Both signed this document. [ 11 ] Subsequently, she made payments from February 13, 2018, to July 25, 2019, totaling $1,500.00. Mrs. Nevers was later contacted by Mr. Nevers to do the house cleaning in his residence as she owed him money. She decided to hire a maid at $57.50 a week which continued until February 2020 when Mr.

Nevers was hospitalized. This represents $747.50 which is considered as a partial payment on the loan. [ 12 ] Mrs. Nevers insisted that this money transfer from her grandfather was a “gift”. She used this word as often as she could. However, she used the words “lend a $1,000.00 and had negotiated an interest of 3%” with this $1,000.00. When asked in cross- examination if it was a “gift” or a “Note”, as evidenced by the Notes with a set amount for interest and a repayment and she had prepared the “Notes”, Mrs. Nevers responded that her grandfather was “old school” and “he likes to have it written”. [ 13 ] Ms.

Nevers acknowledged that Mr. Nevers was, at the time of these money transfers, 84 years old and beginning to have some

memory issues, if not dementia. Asked why she used the words “a mutual family decision agreed upon…” and “James is of sound mind”in a document that she prepared, Mrs. Nevers said that she wanted the record to be clear that she had not abused her grandfather. [14] The Estate relied on the above documents and the evidence of the partial payments, as confirmed by Ms. Nevers, to supporttheir claim that this was a loan and not a gift. ISSUE [15] The issue is to decide if the amount claimed was a gift or a loan and, if a loan, what is the amount owing. ANALYSIS AND CONCLUSION [16] In F.H. v.

McDougall, 2008 SCC 53 , [2008] 3 SCR 41, at paragraph 40, the Supreme Court of Canada confirmedthe following: […] I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof ona balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherentprobabilities or improbabilities or the seriousness of the allegations or consequences. However, these considerations do not change thestandard of proof. […] [17] In Greco v Frano, 2015 ONSC 7217 , a 78-year-old father, Mr.

Greco, advanced the sum of $90,000.00 to hisdaughter and son-in-law. His daughter passed away and Mr. Greco asked Mr. Frano for the return of the money. He refused claiming themoney was a gift. The court wrote: Equity presumes bargains not gifts, […] As a result, when as in this instance, money is advanced to the defendant, the onus is upon thedefendant to rebut the presumption that this advance was a loan. The burden is the general standard of proof on a balance ofprobabilities applicable to all civil cases, but it is a burden nonetheless that must be met by the defendant, Felice. Mr.

Greco does nothave to prove the advance was a loan. Felice has to prove the advance was a gift from Mr. Greco. [18] In Colangelo v. Amore, 2010 ONSC 5657 , the Ontario Superior Court of Justice had to determine if the moneyprovided by the Plaintiff to the Defendant, by way of cheques and direct deposits, was a gift or a loan.

The Court stated the following: [56] Where one person transfers money to another in circumstances where the payor is not indebted to the payee or where nopresumption of advancement arises, once the transfer is proved, the burden then falls on the recipient of the money to show that it wasnot repayable. […] [57] […] An inter vivos gift consists of a voluntary transfer of property from the true possessor to another with the full intention onthe part of both donor and donee that the thing shall not be returned to the donor, but shall be retained by the donee as his or her own.Three requirements are necessary to establish a valid gift inter vivos: (

i) an intention to donate; (ii) a sufficient act of delivery; and, (iii)acceptance of the gift. Of the three modes by which to make an inter vivos gift, only one is engaged by this case – actual delivery of thething to the donee. The Court also added: [59] […] […] If it is proven that the payment of money was made, the burden is on the recipient of the money to show that both parties knew andintended that the money not be repaid. It is not sufficient that the recipient of the property assumed that a gift was being made: adonative intent must be clearly fastened upon the donor. [19] In Gionet v.

Gionet, 2003 NBBR 109 , 2003 NBQB 109, the New Brunswick Court of Queen’s Bench outlined therequirements when considering evidence to show whether the money advanced was a loan or an inter vivos gift: [26] Accordingly, it is obvious that a court must closely analyze the evidence regarding the intention of the person said to havedivested himself of the possession of his property before deciding if it is a gift. […] [28] […] […] There is considerable authority that although corroboration is not required to prove a gift, the Court must closely analyse the evidenceand be satisfied with the truthfulness of the claim.

Clear and unmistakable evidence of both the intention and the gift is required. […] [34] The case law is clear. He or she who alleges an inter vivos gift must show clear and unmistakable evidence of the donor’sintention, otherwise the gift fails. Under the circumstances, the gift must fail. [20] While the document signed at the bank suggests that it was a gift, it was prepared so Mrs. Nevers could get her loan for theproperty that she was to purchase with the assistance of Mr. Nevers. While it was suggested by counsel for Mrs. Nevers that it would befraudulent to allow the Estate, after Mr.

Nevers had signed this document, to claim it was a loan, Mrs. Nevers would not be in a better

position to use this same document as a shield for the money advanced by Mr. Nevers for her to purchase the property after havingprepared and executed the “Notes” mentioned above. [21] Referring to Locke v. Locke, 2000 BCSC 1300 , the Court established commonly applied factors to determinewhether monies advanced are loans or a gift. At bar, there is evidence of a loan in two documents drafted by Mrs. Nevers and signed bythe parties; there are repayment terms specified, partial payments and a demand for payment when Mr. Nevers asked Mrs. Nevers tocome and do the house cleaning.

While she stated not having the time to do so herself, she hired and paid a maid, again, this is anindication of another partial repayment on a loan and, by signing the noted documents, it created an expectation of repayment. All thesefactors are inconsistent with the existence of a gift. [22] Evidently, the evidence given by Mrs. Nevers at trial is not reliable when submitting that the advance was a gift. Whileinsisting that she wanted to repay her grandfather, she also insisted that the “Note” should not be taken as evidence of a loan. Again, sheinsists it was a gift.

The second document prepared on January 29, 2018, is incompatible with the suggestion that it was a gift. Her ownevidence that Mr. Nevers, being of the old school, wanted a written document evidencing the inevitable would not have led to a commonunderstanding of the terms of their agreement if it was a gift. To suggest that this money transfer from Mr. Nevers was a gift is withoutmerit. [23] The Court allows this claim and Mrs.

Nevers is to reimburse the Estate the balance of the loan in the amount of $47,233.87plus interest at a rate of 3% from July 17, 2020, up to the date of this decision being $3,086.87. [24] The Estate shall be entitled to costs under Rule 59, tariff “A”, scale 1 – simplified procedure - in the amount of $2,925.00 foran amount involved of $50,000 plus recoverable disbursements under Rule 59. [25] The Clerk shall execute a judgement at the request of one of the parties.

DATED at Moncton, N.B., this 22nd day of September, 2022. _______________________________________ Jean-Paul Ouellette Justice of the Court of Queen’s Benchof New Brunswick